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Preparation: The Key to Private Company M&A

For leaders of private, closely held companies, selling the company is an important and critical event in their lives. There are several important considerations in managing the sales process to avoid delays and failure to close, all centered around preparation for the entire selling cycle.

Even in hot markets, a lack of preparation and inadequate alternatives will produce a less than optimal outcome.

Using an Auction Process

The common expectation of sellers is that an auction process is the best course. The seller will prepare an offering document, (including a non-disclosure agreement) circulate to probable interested buyers, solicit bids, pick two or three of the best to negotiate with, and come to an acceptable, and painless close.

If the company is in a market with good fundamental characteristics and is one of the most attractive companies available, an auction will most probably work well, because the auction should attract multiple competitive buyers.

Putting the company in that position is the single most important thing a buyer can do.

Here’s how in five steps.

I.Develop Comparable Sales Data and Align your Offering

It’s important for the seller to be informed about what the current market pricing is for similarly situated companies, and what the components of that price are. A thorough review of comparable market transactions should include an understanding of which specific metrics support the most attractive multiples in the market. (and the more recent the better.) This may include earnings as a percent of sales, revenue growth over time, sustained growth rates, sales per employee and other industry-specific metrics. Investment bankers and industry trade groups are good sources of this kind of information, for instance.

Based on these facts, develop a buyer’s view of your company. If a seller has any concerns here, consider engaging a sell-side quality of earnings analysis. This will help you see your earnings through a seller’s point of view.

Clean Up Financial Statements

If financials are not “clean” this is a great time for sellers to remove extraneous balance sheet items, such as shareholder loans, non-operating assets, and the like. If possible avoid major adjustments on the P&L. This may mean operating for a year or more prior to a sale offering if the seller needs to remove personal items from company expenses. Buyers will look past these items for an excellent company, especially in a competitive situation, but their presence leads to deeper questions about other potential pitfalls and variances.

Base The Offering on Market Comparables

Build the sale offering based on this information. This will include the unique story of the company, its growth opportunities and its position in the market as well as its place in the comparables list based on its performance against these industry metrics. Highlight company strengths and opportunities and identify known risks. Proactively explaining risks and mitigation plans and achievements is a highly valued trait of successfully acquired companies.

The more attractive the company is on objective, quantifiable basis, the more likely that its offering will be attractive to multiple buyers, shifting leverage in the selling process.

Plan For Probable Terms

Construct a range of value expectations and review carefully current, comparable terms that may be proposed by buyers. Some highlights include:

Taxes

Consult your tax advisor at this stage about tax implications of various seller requests, such as asset vs. stock sales, favorable tax treatments available with certain sale structures, and so forth. I’ve seen situations where these tax consequences more than made up for lower overall valuations.

Holdback

A sometimes overlooked area is the “holdback,” a portion of the purchase price held in escrow for some agreed to time period. This money is intended to be used to guarantee the accuracy of the seller’s representations and warranties about the business. In a competitive market, and where the purchase prices exceeds $10MM, a seller may consider asking the buyer to purchase insurance to cover this guarantee. It’s expensive (2% to 5% of the holdback, generally) and comes with an underwriting fee in the mid five figures. It also has limits as a percentage of the purchase price (10% in many cases), and may not eliminate the need to hold back a portion of the proceeds as well. However, it helps assure the holdback will be returned as the underwriting requirement brings a lot of objectivity to the holdback negotiation.

Exclusivity

Another term to prepare for is a request for exclusivity in negotiations.

At some point in a successful sale, buyers may request that sellers sign an exclusivity agreement by agreeing only to negotiate with them until a conclusion or breakup is reached.

There are good reasons for a seller to enter into an exclusivity provision in negotiations. If the seller has seen several offers and has quantitatively-based reason to believe these offers are representative of the market price, is satisfied with the proposed price and terms, and the buyer has demonstrated consistent, documented, trustworthy behavior, a provision to enter into an exclusive negotiating period may reduce burdens on management, speed the transaction and build toward a good relationship. It also potentially reduces information leaks that may be harmful to the company in the event of a busted transaction.

However, exclusivity periods can be used to stall while watching performance, especially if managers are distracted by the process itself and valuation discussions have included forecast results in the next quarter or two. Disclosing information can be used to squeeze the company during the same process.

Buyers who believe exclusivity makes sense in a given negotiation may consider limiting their exposure to risk by limiting the time period to very short intervals, and requiring reaffirmation of price and terms at each (biweekly?) time period. If there is any slippage, consider reopening conversations with others.

(In one case, the seller disclosed the investor’s and employee’s eagerness to exit. In addition, the seller’s balance sheet was not strong. The buyer asked for and was given an exclusivity period and direct access to key managers.

The buyer then persuaded the seller and his managers to suspend new sales activity during the course of the negotiation for “market confusion” reasons.

The seller had no advisors to rely upon for decision making.

Unfortunately, the tactic worked all too well. The Company did not have a good alternative to a sale.

The employees were convinced this was a great event for them by the buyer and were obviously eager to close.

Diligence dragged on for months, based on a variety of new issues that arose each week.

As sales fell and cash pressure built, the buyer lowered the offer and in the end the company accepted a 50% reduction in the sales price as an alternative to running out of cash. Part of the leaders rationalization for doing this was the promise of a bright financial and career future at the acquirer. A year later he was suing them for wrongful termination.)

In retrospect, the right answer here was to develop more alternative buyers and only then, if the original buyer was still favored, to agree to a short, exclusive diligence period. A reference check may have provided information about the aggressiveness of the buyer. It wasn’t done either. Of course, agreeing to full employee access coupled with the “stop selling” decision and lack of good advisors are all mistakes.

II. Construct an Attractive and Believable Alternative to Selling.

Decide what the minimally acceptable price and terms are, considering the factual information gathered. Then build an alternative plan contingent on the inability to obtain a desirable transaction. Included in this thinking should be a broader definition of selling to include leveraged recapitalizations, ESOPs and family succession planning. These may prove to be better alternatives than the contemplated sale.

Plan for Capitalization Requirements

The ability to continue the business, strong capitalization and an excellent sales force, product development, positive cash flow and marketing plan are substantial components of an alternative scenario. The unfettered ability to simply continue the business, especially when obvious to buyers, is a strong alternative. More cash enhances seller alternatives and diminishes buyer power.

In the case in which a sale is highly desirable, and not all of the above are present, the plans for a good alternative may include the ability to attract short-term investment from current investors, or to extend lines of credit from your bank.

The assumption here is that alternatives come into play when the seller is down to one buyer who may try and create negotiating pressure, or an array of unacceptable terms. Absent a good alternative (especially when it becomes apparent to the buyer), price and terms pressure increase.

(Recently, a buyer, late in the process made an 11th hour reduction in price believing the company had no good alternative. The well-prepared seller presented his alternatives and explained that they were all superior to a reduced price. The buyer withdrew his offer, walked away and returned three weeks later, reluctantly agreeing to the original terms.

The seller explained that the alternatives were working pretty well and raised the original, previously agreed to, price. The buyer complained, but complied. This was all based on having that real alternative locked and loaded. The seller had also designated one person – not her – to negotiate with the seller. This layer of separation provided time to continue to grow and manage the business free from transaction distraction. Interestingly, it also increased the buyer’s respect for the business and its management.)

III.Construct a Diligence “Room”

Ask knowledgeable advisors what information the buyer will likely ask for. (If you were buying rather than selling, what would you want to know?) Use standard diligence checklists to thoroughly review all possible information requests. Prepare this information carefully, and cautiously.

Savvy sellers and their advisors can, and usually should, disclose information in layers. Summary data about employees, customers and suppliers can be provided initially, for instance. However, access to detailed information and access, for example, to employees, customers and suppliers shouldn’t come until late in the process. A best practice would be disclosure of sensitive information tied to final buyer commitment.

Sellers need to be cautious about the actions of the buyer related to information they’ve gained in the process. For instance, it’s possible for buyers to influence employees and create divergent incentives in the post sale period. These incentives can potentially cause the employees to create pressure on sales price and terms. Sellers should assure themselves that management incentives are completely aligned with the seller’s goals for the transaction.

(The seller’s company was growing very rapidly. The seller’s budgeted sales growth in the next quarter would be up 20%. Buyers had submitted offers and the leading buyer found out what the next highest bidder’s price was.

The buyer then asked for and the seller agreed to an exclusive negotiating period.

The buyer extended the diligence process till the end of the following quarter and built an acquisition model using the sales growth as the primary factor in the price. When the distraction of the transaction caused sales to slip, the price was reduced by the buyer to just more then the second offer. The company sold for about two-thirds of the original sales price and eventually doubled market share.

Management was differentially incented from ownership and “moved over” to the the buyer’s point of view, hastening the acceptance of the lower price.)

By the time this has happened, it’s probably too late. As previously noted, developing an alternative that aligns management with sellers is an imperative in the selling preparation process.

Seller’s Goals Are Important

Be aware that a substantial portion of diligence is the seller himself. Buyers assess not only negotiating strengths and weaknesses but also personal goals and aspirations. That process can also form the basis of a good working relationship going forward. Sellers who can get comfortable with honest and appropriate self disclosure can be disarming and help achieve a good outcome. Of course, several competitive offers make self disclosure less risky!

Check out The Buyer

Sellers should always ask for and check buyer references early in the diligence process. Thorough vetting will assure sellers of the quality of offer and background of the buyer. Buyers who are motivated to build strong relationships as an essential part of a good business will welcome sellers who take these actions.

IV. Assign Roles to Advisors

These may be Company directors, advisors, investors, attorneys or accountants.This may include reviewing buyer requests, seller decisions, terms and risks.Agree in advance who will need to approve negotiated terms. Plan for short term review requests and meetings.

Use Process to Provide Time to Consider Requests

Consider informing the buyerthat you have to seek approval from your advisors for proposed terms and concessions.In this way, you buy yourself time to carefully consider requests.The discipline created by agreements to review steps with advisors, even if they do not have decision making authority, can create a safety valve to avoid pressure to make decisions hastily.

V.Choose an Intermediary

An experienced and skilled professional is often the biggest advantage a seller can have.

This is often an investment banker. Prefer one who is experienced in your industry and if possible who only sells, and whose transaction sizes closely match what is anticipated in this specific transaction. Get a firm commitment in advance about who in the firm will lead the deal.

Expert intermediaries should have very good knowledge of the market and be able to identify buyers and their appetites and risk profiles as well as their typical deal terms. They make money by getting better prices and terms for sellers. One major component of their process is to bring multiple buyers to the table and add their expertise to help balance the relationship between buyer and seller.

Check References and Style

Good reference checking on the seller’s part is a requirement.

In my experience, the best intermediaries have an orientation to be cooperative, positive, and seek to complete the transaction while single-mindedly seeking a fair, evenhanded transaction.

It’s amazing how often I see advisors who think aggressiveness and tough behavior is the right card to lead with. While this may get deals done, it has the potential to derail a transaction.

In Conclusion

The ultimate balance between buyer and seller is to not have to sell and be able to have good, confirmed walk away alternatives. This is usually not an easy position to get to but it pays great rewards to sellers who have the discipline and savvy to achieve it.

About the author

Tim Keane is President of Keane Consultants and founder and director of Golden Angels Investors. He was the founder and chief executive officer of Retail Target Marketing Systems, which was on the leading edge of consumer data-driven marketing for retailers and banks, and is now part of Fidelity Information Systems. Keane is a director of First Business Bank, sits on the boards of several growth stage firms, and is a limited partner in several venture and private equity funds.